THE RULE OF LAW FOR EVERYONE? By Brian Z. Tamanaha
PRIMACY OF THE RULE OF LAW These are dark times. One must wonder whether the same has not been said at all times, but around the world today there appears to be more than the usual doses of war, oppression, and insecurity. Concern is not limited to instances of open warfare, as now exists in Afghanistan and Israel. Economic disaster, political uncertainty, and social instability bubble just beneath the surface in many societies around the world. Islamic fundamentalists threaten governments throughout the Middle East, from Algeria to Egypt. Kurdish minorities in Turkey and Iraq seek independence, or at least better treatment, sometimes by violent means. The so-called “Wild West” capitalism of Russia, and the perhaps hundreds of millions of agricultural and industrial laborers who are being thrown out of work in China, have frightening local and global implications if not contained as these two major powers struggle to manage the transition away from communism to some form of capitalism. Countries in Latin American, which in recent years appeared to make significant strides toward economic and political stability, have demonstrated anew—a military coup (quickly reversed) in Venezuela, an assassination attempt on a presidential candidate in Columbia, the temporary shuttering of banks in Argentina, to mention a few recent examples—that the plagues that bedevil the region have not lessened their grips. A few countries in Africa (like Somalia) lack effectively functioning state legal systems; a few countries (like Sudan) exist in perpetual internal conflict. Even in many of the more fortunate countries, quieted ethic, tribal, or religious
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conflicts appear capable of eruption with minimal provocation, posing a seemingly intractable barrier to political and economic development. Nigeria is wracked by corruption. Zimbabwe is riven by racial tension, with South Africa not far behind. Two individuals in Madagascar claim to be President, and appear bent on partitioning the country if necessary to effectuate their claim. Hindus and Muslims spasmodically kill one another and burn the other’s temples in India. Religious conflict threatens Indonesia. Marxist guerillas terrorize the Philippine countryside. The economic crisis that broadsided the successful Asian economies a few years ago, revealed that even regions that have enjoyed substantial economic progress cannot rest easy. Nor is the West immune, as demonstrated by the IRA (or associates) in Belfast and London, and by white supremacist organizations in the United States, who bomb civilians to make their point. To this woeful recitation many more examples can be added, but enough has been said. What makes it feel more pervasive—as if that were necessary—is that conflict was once localized, inflicting pain and insecurity only on those unfortunate enough to fall within it geo-political ambit. With the advent of global terrorism, however, there are no boundaries, no safe havens. For those not inclined to throw up their hands in despair, and indeed that is a luxury we can ill afford, it is difficult to know how to ameliorate these myriad problems. Given the unique circumstances of each case, the one obvious point is that any solution will of necessity be situation specific. Having said that, there appears to be an extraordinary degree of agreement about one prescription that would benefit all, that is: the rule of law. Without doubt, “the rule of law” is the dominant legitimating slogan in the world today. Even governments that reject, or express reservations about, democracy
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and human rights as Western cultural and political inventions not suitable for their own societies, nonetheless claim that they abide by, or are working toward achieving, the rule of law. The virtual unanimity in support of, and prominence accorded to, the rule of law merits some detailing. Among Western states it is taken for granted that the rule of law is a defining characteristic of liberal democracies, the most important trait of a free society. Following the 1984 London Economic Summit, the “Declaration of Democratic Values” issued by the seven heads of state of the major industrial democracies and the President of the Commission of the European Union, listed very first among the “values which sustain and bring together our societies:” “We believe in a rule of law which respects and protects without fear or favor the rights and liberties of every citizen and provides the setting in which the human spirit can develop in freedom and diversity.”1 Consistent with this sentiment, beginning in the early 1990s, the Western funded World Bank and International Monetary Fund attached as a condition of loan grants, under the general rubric of “good governance” programs, that recipient countries establish the rule of law. This imposition was primarily justified on economic grounds as a means to provide a secure environment for investment and market transactions, rather than in political terms as necessary for freedom.2 With this initiative came a shift away from purely economic projects, toward greater attention to solidifying government institutions, especially court systems, in developing societies. At a recent intensive training session of World Bank
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“Declaration of Democratic Values,” reprinted in Washington Post, 9 June 1984, p. A14. “World Bank Sees Rule of Law Vital,” United Press International, 9 July 2001 (statements of World Bank President James Wolfensohn).
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staff members and consultants, “’Rule of law’ was probably the most-repeated phrase of the week.”3 The touting of the rule of law is not just a mantra of lecturing Western liberal democracies. Here is a sampling of endorsements of the rule of law by government officials from a range of societies outside the West. Alexander Lebed, a former army general of the Soviet Union, ran as a champion of the rule of law when a candidate for the Russian Federation presidency.4 Even during the communist regime of the Soviet Union (under Gorbachev), as well as elsewhere in communist Eastern Europe, albeit on the last legs of communism, the governments were, or claimed to be, working to establish the rule of law.5 China, still avowedly communist, recently signed a U.N. pact agreeing to cooperation and training for the protection of individual rights (economic, social and cultural rights, more so than civil and political rights) and establishing the rule of law.6 “Chinese leaders say they also support the establishment of the rule of law,” a commitment evidenced by the attendance of President Jiang Zemin at a seminar on the topic.7 C.H. Tung, appointed by the Chinese government to run Hong Kong, insisted that even following the takeover: “We are going to be a community of the rule of law.”8 Seven months after taking office, Indonesian President Abdurrahman Wahid listed as one
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“A World Free of Poverty,” by Jim Boyd, Star Tribune, 25 June 2000, p. A 27. Alexander Lebed, “Rule of Law for Russia,” The Moscow Times,” 1 June 1996, section 972. 5 See Alexader Yakolev, “Moving Back From the Precipice Toward Soviet State Based on Rule of Law,” Los Angeles Times, 26 May 1989, Metro p. 9; “After the Wall: A Rule of Law in the Soviet Bloc,” by David Shipler, Washington Post, 10 December 1989, p. C 1. 6 “China Sign U.N. Pact on Rights and Rule of Law,” by Eric Eckholm, New York Times, 21 November 2000, p. A 4. 7 “Chinese Movement Seeks Rule of Law to Keep Government in Check,” by Steven Mufson, Washington Post, 5 March 1995, A 25. 8 “We are Going to be a Community of the Rule of Law,” Business Week International Edition, 23 December 1996, p. 20. 4
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of his major achievements: “we are beginning the rule of law.”9 President Mohammed Khatami of Iran has made “repeated remarks about the value of a civil society and the importance of the rule of law.”10 Mexican President Vicente Fox Quesada declared, just prior to his assumption of office, that the lack of the rule of law is “the theme that worries Mexicans most.”11 The foregoing testimonials for the rule of law have come from governing officials of various kinds of economic, cultural, political and religious systems and societies. Although many of these claims merit scepticism, they should not be dismissed as insignificant. References to the rule of law—specifically, of the failure of governments to live up to the rule of law—can be vastly multiplied if the statements of dissidents, critics, international agencies, and non-governmental organizations are taken into consideration. Agreement thus exists on all sides that governments should be adjudged by their adherence to the rule of law. No one says that the rule of law is an elixir for all ails. But many apparently believe that it is a fundamental component of any successful recipe for political and economic stability and progress, as well as a standard by which to evaluate government legitimacy. By this measure, the rule of law is perhaps indeed a “cultural achievement of universal significance,” an “unqualified human good,” as E.P. Thompson declared a quarter century ago.12 If true, it might well be the only universally shared good in a modern world in which the most evident lesson is how divided we are culturally, economically, and politically.
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“We Are Beginning the Rule of Law,” Business Week, 29 May 2000, p. 70. “Hiding Behind the Rule of Law,” by Azar Nafisi, New York Times, 19 December 1997, A 39. 11 “A Farmer Learns About Mexico’s Lack of the Rule of Law,” by Tim Weiner, 27 October 2000, A 3. 12 E.P. Thompson, Whigs and Hunters (Pantheon 1975) p. 265,266. 10
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FOUR REASONS FOR CONCERN Four reasons, however, counsel caution in the rush to embrace the rule of law. First, the rule of law is strikingly like the notion of the “good,” in the sense that everyone is for it, but there is no agreement on precisely what it is. Some, including most legal theorists, believe that the rule of law has purely formal characteristics, meaning that the law must be publicly declared, with prospective application, and possess the characteristics of generality, equality, and certainty, but there are no requirements with regard to the content of the law. Others, including a few legal theorists, believe that the rule of law also necessarily entails protection of individual rights. Within legal theory, these two approaches to the rule of law are seen as the two basic alternatives, respectively labeled the formal and substantive approaches to the rule of law. But there are additional views as well. Some believe that democracy is part of the rule of law. And still others, as declared by the International Commission of Jurists in their report on the rule of law, assert that it encompasses the “social, economic, educational, and cultural conditions under which man’s legitimate aspirations and dignity may be realized.”13 As dissidents regularly point out, many authoritarian governments that claim to abide by the rule of law are either prevaricating, or have an atypical understanding of the phrase. Chinese law professor Li Shuguang summarized one such contrast in understanding: “’Chinese leaders want rule by law, not rule of law’….The difference…is that under the rule of law, the law is preeminent and can serve as a check against the abuse of power. Under rule by law,
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International Commission of Jurists, The Rule of Law in a Free Society (Geneva 1959) p. VII.
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the law can serve as a mere tool for a government that suppresses in a legalistic fashion.”14 Considering this lack of agreement, which is seldom acknowledged when the slogan is being repeated, saying that the rule of law is essential runs the risk of saying nothing. How can the rule of law be implemented if we don’t know what it means? The second reason for caution is that, according to a recent article in Foreign Affairs, more than ten years of effort and hundreds of millions of dollars have been expended on developing the rule of law, focused especially on developing judicial systems, but with scant positive results.15 If it is not already firmly in place, the rule of law appears mysteriously difficult to establish—one might even say resistant. No one knows quite how to institute and entrench it, or even whether it can be done intentionally. The rule of law might be one of those spontaneous achievements that occur under a confluence of circumstances beyond anyone’s control. The third reason for caution is that it is not obvious that the rule of law is good for many circumstances in non-Western societies. It is difficult to put this in concrete terms without knowing what the rule of law means, but assume for a moment that it entails a rule-oriented outlook. There are many close knit small communities around the world today in which a rule orientation would be out of place. The judge in a rule of law system is supposed to be neutral, and is required to evaluate the conduct of the individuals involved relative to the legal rules and the evidence in the case; but in many small communities the judge will know everyone, including their families and life histories, and decisions will be made with this background in mind, with a focus less on 14
“Chinese Movement Seeks Rule of Law to Keep Government in Check,” by Steven Mufson, Washington Post, 5 March 1995, A 25.
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the strict application of rules than on coming to a resolution satisfactory to all. Legal anthropologists have made this point repeatedly, though it has often been disregarded as nostalgia over a bygone or quickly disappearing world. The fact remains that many such communities continue to exist, so the concern must be taken seriously. The final reason for caution is a striking disjunction between the theoretical discourse on the rule of law and the political discourse on the rule of law. Theorists on the left, center, and right have proclaimed the decline of the rule of law in the West for some now, beginning with A.V. Dicey over a hundred years ago, gaining momentum with Friedrich Hayek fifty years ago, and repeated often in the past three decades. Although the political right bemoan this development while the political left celebrate it, both sides, which seldom agree on anything, are in agreement that this decline has occurred. The core changes associated with the decline of the rule of law in the West— most of which are tied to the rise of the social welfare state—can be summarily stated. Administrative officials have been given broad discretion to achieve policy goals, discretion that does not involve the application of rules and is not subject to judicial oversight. Attempts to achieve distributive justice require treating differently situated people differently, which is contrary to the formal equality required by the rule of law. Judges are increasingly asked to apply broad standards like fairness, reasonableness, the public interest, and unconscionability, and to engage in the balancing of interests, all of which appear to entail the making of subjective judgments. Moreover, there appears to be a growing tendency by judges toward departing from the rules if necessary to achieve justice in the individual case, which results in a reduction in the certainty of the law owing to the fact that one cannot count on the rules being consistently applied. The far 15
Thomas Carothers, “The Rule of Law Revival,” 77 Foreign Affairs 95 (1998)
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political left, represented most vociferously by the Critical Legal Studies Movement, are not unhappy about the decline of the rule of law. Their critique of the rule of law takes place within a broader critique of liberalism. They argue that liberalism is too individualist and alienating, and cares not enough about community, solidarity, or the downtrodden in society. Liberal legalism creates a façade of neutrality and formal equality that masks and perpetuates real economic and social inequality. Not content to rest with the decline of the rule of law, the radical left has actively attempted to further undermine the rule of law by pressing the indeterminacy thesis. Their argument is that the law does not dictate single correct answers in most cases, so judges make decisions based on other grounds, including their own political views.16 If this argument is correct, it follows that the rule of law is a fraud, since it is the person who happens to be the judge that matters most in the interpretation and application of the law. The disjunction, then, is that even as theorists agree widely about the fact of the marked decline of the rule of law in the West, with some working to further this decline, politicians and development specialists are actively promoting the spread of the rule of law to the rest of the world. This is not to say that the promoters of the rule of law are hypocritical, as it is not evident that they are aware of, or concur with, the theoretical discussion. Still, it is a curious disjunction that bears thought.
THE RULE OF LAW FOR EVERYONE? Having set out reasons for reservation, let us return to the title of this talk: “The rule of law for everyone?” It is a question that will be answered in the affirmative, at
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See Joseph Singer, “The Player and the Cards: Nihilism and Legal Theory,” 94 Yale Law Journal 1 91984).
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least conditionally. The rule of law, as I construct it, is indeed a universal human good, one that I believe can be realized. The argument will press two themes. The main theme involves the articulation of two different historically grounded versions of the rule of law—what I call the pre-liberal version and the liberal version. This contrast operates on a completely different axis from the standard theoretical separation between formal and substantive accounts of the rule of law, which is generally drawn within a liberal framework. The significance of recovering a pre-liberal understanding of the rule of law lie in the fact that many societies around the world are not liberal societies. Liberal societies, to state it in grossly simplified terms, have as their primary orientation the freedom of individuals to pursue their own vision of the good. Many non-liberal societies, in contrast, accord primacy to the community and share a community generated vision of the good. Objections to the rule of law based upon its association with liberal values have no purchase against the pre-liberal version of the rule of law. A secondary theme, pressed more implicitly than explicitly, involves changing the way the rule of law is conceptually conceived. Much of the current theoretical discussion of the rule of law takes place in all or nothing terms, along the lines of antinomies or dichotomies constituting oppositions based upon set and irreconcilable elements, exemplified by the formal versus substantive contrast. This understanding is inappropriate and limiting. The rule of law should instead be seen as a couple of fundamental ideas—or inspirations—the first of which emphasizes protection against government tyranny (pre-liberal version), and the second revolving around the qualities of legality (liberal version). These ideas are often found intermingled together in history,
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theory, and practice, but they are nonetheless separable, and have been manifested in different contexts with different clusters of characteristics. This more flexible view makes it possible to isolate on what matters, and peel off those aspects that can be discarded or replaced while still achieving the essential value of the idea. Once this is accomplished, it will be easier to envision how the rule of law might work within nonWestern contexts, though it might take on a different form and work in different ways.
THE RULE OF LAW BEFORE LIBERALISM The core idea of the rule of law, the thread that has run for over two thousand years, breaking at times, and often frayed thin, but always picked up again and carried along, is that the monarch (and government officials17) should operate within a framework of law—that the sovereign is limited by the law. This idea existed long before liberalism was ever imagined. The inspiration underlying this idea is the attempt to limit government tyranny. It is important at the outset to distinguish two different senses of the notion that the monarch and government officials must operate within a limiting framework of the law. The first sense is that they must live up to the positive law then in force. If they don’t like the law, it must be changed first. Until it is changed, they are bound to it. The second, more ambitious sense, is that even when the monarch and government officials wish to change the law, they are not entirely free to change it in any way they desire. There are restraints, in other words, on their law making power. There are certain things they cannot do with or in the name of law. Whether these restraints are understood in
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terms of the dictates of natural or divine law, or a timeless customary law, which were the two dominant views in the middle ages, the fundamental point is that they restricted the sovereign’s power over the positive law. The puzzle presented by the idea that the sovereign is limited by the law (in both senses), one which remains with us today, is this: How can the very power that creates and enforces the law be limited by the law? Indeed some theorists have thought that the rule of law is impossible, at least conceptually, for this reason. Hobbes dismissed the idea: “he that is bound to himself only, is not bound.”18 If the law is the command of the sovereign, the sovereign cannot be limited by law, for that would mean the commander commands himself. Aquinas made this argument to deny the possibility that the sovereign is limited by the positive law: “The sovereign is said to be exempt from the law; since, properly speaking, no man is coerced by himself, and law has no coercive power save from the authority of the sovereign. Thus then is the sovereign said to be exempt from the law, because none is competent to pass sentence on him, if he acts against the law.”19 The Justinian Code concretized the view that the sovereign is the source of, and above, the law in two separate clauses—“What has pleased the prince has the force of law” and “The prince is not bound by the laws.”20 Another manifestation of sovereign control over the law was the dispensing power—with a continued residual existence today in the pardoning power of chief executives—whereby the king had the power to declare in specific situations that the law did not apply. Although historically
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During much of the middle ages, when the state system had hardly developed, the government bureaucracy was barely or non-existent. Use of the label “government officials” might be anachronistic, and is therefore offered as a loose label. 18 Thomas Hobbes, Leviathan (Oxford Univ. Press 1996) p. 176-77. 19 Thomas Aquinas, Treatise on Law, 96, Article 5 (Regnery Gateway 1987) p. 100-01. 20 Digest 1.4.1 and Digest 1.3.1, cited in Stein, Roman Law in European History, p. 59.
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this issue has focused on the monarch, the problem of how to limit the source of the law arises whether the “sovereign” is the king or a parliament, or some other person or body accorded with the ultimate power to make and enforce law. Despite this puzzle, a string of pre-liberal theorists, from Plato to Aristotle, to Cicero, to Aquinas, up through the middle ages, proclaimed the virtues of a sovereign and government officials who operated within, limited by, the law. And indeed to some degree this aspiration was lived up to. To the extent that it was achieved, the obedience of the monarch and government officials to restraints imposed by law occurred in three basic ways. The first way was that the monarch explicitly accepted or affirmed that the law was binding, though not always voluntarily. To offer one such example, in the late middle ages it became standard for monarchs to make an oath to the pope upon ascending office to abide by the divine law, and under divine law good kings followed the positive law. Aquinas, in the context of the above quoted comments regarding the logical impossibility of the rule of law, asserted that the sovereign can nevertheless subject himself to the law by his own will, and further that he should do so, because “whatever law a man makes for another, he should keep for himself.”21 Another example is the Magna Carta, in which the King John agreed to be bound by its terms, albeit under duress from the Barons allied against him and almost immediately thereafter repudiated by him. The second way is that everyone, monarch included, understood or assumed that the monarch, and government officials, operated within a framework of laws that applied to everyone. The supreme example of this is Germanic customary law. Medieval scholars have indicated that kings were understood by all to live within the strictures of
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this law.22 The ancient right of resistance was grounded on the king’s breach of this law. “The king and his people both stood under a mutual obligation to preserve the law from infringement or corruption and in some cases when the king clearly failed to do his duty we find his subjects taking matters into their own hands and deposing him.”23 The third way was, as a matter of routine conduct, when engaging in ordinary activities, monarchs and government officials operated within legal restraints like everyone else (if always on more favorable terms). This third way complements and overlaps with the preceding one, but bears separate mention to emphasize the weight of mundane regularized conformity. A king who wanted to borrow money, for example, would have to live up to the agreement if he hoped to obtain future loans. A king who had rights to fees or services from feudal holdings, also had duties and obligations that had to be satisfied. The public/private distinction was not sharply drawn during the Medieval period, so the underlying message was that the kings and high officials operated on a daily basis within a legal framework, regardless of their status. This message was reaffirmed when a distinction developed between the person that is the king and the institution that is the crown, with suits allowed against the former. I am not asserting, of course, that monarchs and government officials always in fact abided by the law. When an objective was important enough to a sovereign, a law standing in the way was little more than an irritant. If possible, the law was changed first, or the action was construed (however implausibly) in terms consistent with the law; otherwise the law was simply violated. More often than not, the law was a weapon in their hands wielded to achieve their objectives, more so than a limitation. This was 21 22
Aquinas, Treatise on Law, 96 art. 5, p. 100. See Fritz Kern, Kingship and Law in the Middle Ages (Harper 1956).
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facilitated by the reality that often judges were beholden to monarchs. Still, the sovereign and government officials regularly did operate within the terms of the law; and in circumstances when a law was disregarded by them, it was done with aforethought, following contemplation of potential consequences and possible alternatives. A crucial point must be underscored, one that goes back to the initial puzzle about how the lawmaker can be limited by the law. Although I have argued that the sovereign and their officials regularly operated within the law, it must be emphasized that usually there were no effective legal remedies for violation. When the law was repudiated or violated by the sovereign or government officials, there were political consequences to be paid. The violation of the law was a rhetorical or symbolic resource for those who opposed the action and attempted to resist in the name of fidelity to the law. In such cases, the sanction that served to enforce the law against the source of the law (against the sovereign), then, was not a legal sanction, but a non-legal sanction, regardless of whether the claimed violation was of positive law, natural law, or customary law. The two different senses of legal restraints on the source of law, identified at the outset of this section, play out differently in relation to these observations about sanctions. There is no barrier in principle to imposing legal sanctions on the sovereign and government officials for violations of positive law (violations of natural law and customary law can also be sanctioned by the legal system, though with attendant complications to be mentioned shortly). Indeed this has been accomplished in all societies that possess the rule of law in this pre-liberal sense. A.V. Dicey identified as a mainstay of the rule of law in England the fact that government officials could be brought before ordinary common law courts by private citizens to answer for violations of the 23
John B. Morrall, Political Thought in Medieval Times (Univ. Toronto Press 1980) p. 16.
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law.24 For this kind of restraint to be effective, the essential prerequisite is that the judiciary possesses a degree of independence or autonomy from the rest of the government apparatus. This particular solution to the puzzle involves dividing up and partitioning the sovereign, giving one part (the judiciary) the capacity to hold the other parts on legal grounds. In the middle ages there often were no effective legal remedies primarily owing to the lack of an independent judiciary. While an independent judiciary is properly thought of as a necessary aspect of liberalism, its existence in England from the late 17th Century,25 though in development from long before, predates liberalism. Where an independent judiciary does not exist, however, the only remaining sanctions for violations of law are non-legal ones. Legal limits on the law-making power of the sovereign, the second sense identified earlier, is another matter altogether. Although the first sense is of great significance because it involves legal limits on the routine conduct of government officials, the second sense is more ambitious. The first sense of legal limitation can be circumvented by the law-maker simply amending the law to suit its desired objective. The second sense limits this ability of the law-maker to mould the positive law to conform to its will. In the middle ages the two primary sources of the latter limits were natural or divine law and customary law, both of which where thought to bind the sovereign. These sources of supreme law existed apart from and beyond the control of the law-maker. It is far more complicated for an independent judiciary—when it exists— to enforce limits in this second sense by comparison to the first. A threshold problem is identifying the precise contours of the natural law or customary law limits, neither of 24
A.V. Dicey, Introduction to the Study of the Law of the Constitution (Liberty Foundation 1982) p. 110115
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which are written or enacted. Another problem is that it places the judiciary in a position superior to the law-making sovereign, which is far more threatening than the first sense in which the law maker is merely required to live up to (or amend) the laws it enacts. The judge effectively becomes supreme (albeit in the name of a higher law), no longer coequal, which is unpalatable to most every political authority. For these reasons, judges have rarely been given the power to enforce natural law and customary law as limits on the law-making power of the sovereign. Hence the primary sanctions enforcing limits on the sovereign’s ability to declare the law have usually been non-legal rather than legal.
COMPARING US AND UK ON LEGAL LIMITS A brief digression, involving a comparison of the US and UK legal traditions with regard to limits on the law making power of the sovereign, will help draw out the implications of this argument. The comparison will be between the United States and England at the end of the 19th Century when Dicey published his classic study of the English constitution.26 Dicey is deserving of such attention owing not only to his astute analysis of the rule of law, but also to the fact that he is most responsible for giving the phrase its modern prominence. The US had a written constitution that was the supreme law of the land. It enabled, distributed, and set limits on government power. The bill of rights explicitly limited government intrusions on individuals. Ordinary legislation could not be inconsistent with constitutional limits. The mechanism that insured consistency was
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S.E. Finer, The History of Government, Part III (Oxford 1997) p. 1347-48. In addition to linking up with Dicey’s analysis, this historical comparison helps avoid the complications caused by the entry of the UK in the European Union. The point illustrated by this comparison stand regardless of such changes.
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judicial review. Said limits on the legislature were not absolute, as the Constitution itself could be amended to allow the desired legislation, but that required surmounting a higher threshold burden. The UK had a constitution, but not a written one. Its constitution consisted of core legal documents like the Magna Carta, the Settlement Act, the Habeas Corpus Act, was well as of conventions and understandings. It included an Act called a Bill or Rights, but that did not articulate a sphere of protected individual liberty in the same sense as in the US Constitution. Nor was the UK constitution supreme in same manner as the US constitution—it set no limits on the law making power of the sovereign. In the UK, parliamentary sovereignty reigned supreme. Consistent with this view, judicial review was not allowed. According to US criteria, the UK lacked the rule of law, at least in the sense of limits on law making power. But given that, by all accounts, the UK has long been the bastion of the rule of law, that is too hasty of a conclusion. The issue must be broken down more closely. The first sense, that government officials must follow the law until it is changed, held with full force in the UK; the UK constitution played the same role in this respect as did the US constitution. Again, the key to the existence of this first sense, in both the US and the UK, was the presence of an independent judiciary. It would seem that in the second sense—limits on the lawmaking power of the sovereign—there indeed was a sharp divergence between the two systems. The US constitution specified such limits while the UK constitution did not. The limits existed in explicit legal terms, and were enforced by a legal mechanism. Beneath these superficial features, however, the differences are far less stark. For on thing, the limits on US
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lawmakers were procedural rather than absolute. Just as in the UK, the US constitution was a law that could be amended; so existing limits on the lawmaking power could be eliminated by rewriting the constitutional limitation. The only difference between the two systems was that constitutional changes which could be effected by ordinary legislation in the UK had to be accomplished by constitutional amendment in the US, which is a difference in degree, not kind. Significant as this difference might seem, and certainly to American ears it appears vast, in practice both systems appeared to be functionally equivalent in the sense that lawmakers in both operated within restraints. Dicey suggested that there were two kinds of limits on absolute parliamentary sovereignty, what he called internal and external.27 The internal limits were the moral beliefs of the legislators that rendered certain fundamental changes unthinkable. The external limits were the anticipated and actual political reaction to offending legislation, specifically mass disobedience or disregard of the law. To but the point another way, although in theory the parliament is omnipotent, certain fundamental changes were simply unthinkable. Consider a law abolishing religion. Although the UK did not have a clause protecting the freedom of religion, such legislation could not possibly be enacted for the reasons stated by Dicey. By this account, there were indeed limits on the sovereign law making power, which might even be considered “absolute” limits. Isaiah Berlin observed about England: “What makes this country comparatively free, therefore, is the fact that this theoretically omnipotent entity is restrained by custom or opinion from acting as such. It is clear that what matters is not the form of these restraints on power—whether they are legal, or
27
Dicey, Introduction to the Law of the Constitution, supra, p. 1-5.
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moral, or constitutional—but their effectiveness.”28 The same internal and external restraints existed, it must be said, in the US (though it is an open question whether the presence of judicial review encourages citizens to be less vigilant in their willingness to exercise the power of serving as external restraint). In effect then, there were (and are) indeed limits on the lawmaking power of the parliament, regardless of theoretical parliamentary sovereignty. More important, for the purposes of this analysis, these kinds of limits are precisely the same limits that operated, in effect, on monarchs and government officials in the middle ages. That their arguments about what limited the lawmaking power of the sovereign were couched in terms of natural law or customary law matters not in this respect. In both cases there were no effective legal mechanisms for enforcing said limits. The limits on the sovereign were internal and external in precisely the same way that they were in Dicey’s day, and continue today.
THE RULE OF LAW IN LIBERALISM Note that in the preceding discussion of the pre-liberal version of the rule of law nothing was said with regard to public, prospective laws, with the qualities of generality, equality and certainty. The analysis addressed only that the government must operate within the law, and that even when the sovereign exercises its lawmaking power it is hemmed in by restraints, limits which might or might not be phrased in legal terms (as with constitutional limits, natural law or customary law). These restraints can be enforced by legal institutions, at least when an independent judiciary exists, through bringing government officials before ordinary courts and through mechanisms like 28
Isaiah Berlin, Four Essays on Liberty (Oxford Univ. Press 1969) p. 166 n. 2.
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judicial review, but otherwise their sanctions rest upon internal moral consequences or external political consequences. Now let us turn to the rule of law within liberalism. The primary import of the rule of law—its underlying inspiration—in the context of liberalism is the protection of individual liberty. This interest is vindicated above all others. The basic idea is that when individuals know the rules in advance they are free to do what they wish outside of what the rules proscribe. This is legal liberty. This idea, presaged by Montesquieu, who wrote that “Liberty is a right of doing whatever the laws permit,”29 was placed at the center to the rule of law by Friedrich Hayek, the great modern defender of the rule of law. As Hayek put it when defining the phrase, the rule of law makes “it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge.”30 Public, prospective laws, with the qualities of generality, equality and certainty, in addition to preserving individual liberty, were perfectly suited to facilitating market transactions, as Weber made clear in his arguments about the benefits to capitalism of formal rationality in terms of the predictability and security of transactions.31 For many liberals, including Hayek, economic liberalism under the market is inseverable from political liberalism, with the rule of law so defined essential to both. The primary import of the rule of law in the pre-liberal period, to reiterate, was limiting tyranny of the monarch and government officials, not protecting individual liberty. Whilst it might seem that the very point of restraining tyranny is to vindicate
29
Baron de Montesquieu, Spirit of Laws (Bell and Sons 1914) Vol. 1, p. 161. F.A. Hayek, The Road to Serfdom (Univ. of Chicago Press 1994) p. 80. 31 See David Trubek, “Max Weber on Law and the Rise of Capitalism,” 1972 Wisconsin Law Review 720 (1972). 30
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individual liberty, that is not necessarily the case. Medieval society was not individualist oriented. It was a strictly hierarchial society in which everyone had a predetermined place, all within an overarching Christian ethical and religious framework. The Barons who forced the King to agree to the Magna Carta where striving to protect their power and privileges, not to vindicate abstract individual liberty. Germanic customary law that bound the king was about obligations and duties of fealty owed from one to another in relationships between different social statuses. The notion of individual liberty as a sphere free from government interference is of relatively recent vintage, dated no earlier than the Renaissance or Reformation.32 In modern Western society these two different orientations of the rule of law collapse into the same beneficiary: the individual. Owing to this fact, both versions the rule of law are mentioned with equal frequency, usually together, without recognition that they are distinguishable. But they are nonetheless distinct inspirations that do not necessarily amount to the same thing.
PLURALISM AND SOCIAL SPHERES Preliminary to demonstrating the usefulness of the distinction between pre-liberal and liberal approaches to the rule of law, I must articulate three kinds of pluralism, and identify several social spheres. What follows are tentative working distinctions, without elaboration and with no theoretical or scientific pretensions. The first kind of pluralism is that in which individuals within a society have different visions of the good. This is the classic notion of value pluralism in Western societies, upon which liberalism is constructed.
32
Berlin, Four Essays on Liberty, supra, p. 129.
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The second kind of pluralism is that in which different communities each with their own cultural or moral vision, and sometimes even different languages, coexist within a single society. This is common in formerly colonized countries in which national boundaries were drawn without regard to preexisting tribal, ethnic, religious, or cultural differences. It also exists in major Western metropolitan areas with the formation of relatively discrete immigrant communities from outside the West, many of which have grown in the last generation. Whatever the mix, the individual constituent communities coexisting in the same society need not be liberal, and indeed often are not. The third kind of pluralism, for which the term “hybrid” might be more apt,33 is that in which society contains different streams of influence and institutions, indigenous as well as exogenous in origin. A single society, for example, might have modern capitalist economic activities coexisting alongside traditionally organized non-capitalist economic activities. It might have recently transplanted democratic political institutions that coexist with non-democratic traditional political institutions. It might have contexts within which individualist orientations are pervasive alongside contexts within which communitarian orientations are dominant. This kind of pluralism, or hybridity, often breaks down along the lines of distinctions between urban and rural areas, workplace and home life, modern and traditional, secular and religious, with one kind of activity taking place in one arena or location and the other taking place in a different one, but it need not fall into these patterns. To offer a gross generalization, all societies contain mixtures of all three kinds of pluralism, though it is accurate to say that Western societies are substantially characterized by the first kind of pluralism, and increasingly the second (at least in major
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urban areas), whereas non-Western societies are substantially characterized by the second and third kinds of pluralism. This identification of various kinds of pluralism is necessary, not just to reiterate how complicated the situation is, but also to preempt the temptation to analyze the problem in terms of a distinction between communitarian societies and individualist societies. There are indeed fundamentally different orientations in societies and cultures well captured by this contrast—but the second and third kinds of pluralism suggest that the reality manifests complicated mixtures of these orientations, which precludes simple strategies. A final set of distinctions must be made, this time in terms of social spheres. These spheres are interpenetrating and cannot be sharply drawn, and are articulated here solely for the purpose of locating starting points of analysis. The first sphere is that of government activity. By government I am referring specifically to the state apparatus (at all levels, from municipal to national, also including international or transnational governmental institutions). This sphere can be delimited in a number of ways (depending upon the context), the simplest of which is in terms of everyone who is a government official, that is, any person who wields governmental authority. The second sphere is that of economic exchanges, which, broadly conceived, involves any kind of exchange for gain. This is further subdivided into realms of capitalist market exchanges, and realms of non-market exchanges (such as reciprocal transfers).
33
See Gregor McLennan, Pluralism (Univ. Minnesota Press 1995) p. 88-89.
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The third sphere—overlapping at many points with the previous—is that of the workplace or labor. This too is subdivided into realms of activities that are connected to the capitalist market (earning wages or profits), and those that are not (subsistence activities). The fourth sphere is that of the family. The fifth sphere is that of the social community, including what political theorists consider the private associations of civil society. These spheres will not always be sharply separable, and often one or more will overlap. In many small scale (village) societies, the workplace, the realm of economic exchanges, the family, and the social community are not separable at all. In many urban areas, by contrast, often each sphere is distinct. Many social theorists have identified the separation of social spheres to be a defining characteristic of modernity. Questions regarding borderline cases will arise with regard to each sphere, of course, that can only be resolved in the instance at hand. Again, these distinctions merely serve as starting points, rough working distinctions with which to begin the analysis.
APPLYING THE PRE-LIBERAL VERSION OF THE RULE OF LAW The pre-liberal version of the rule of law is assuredly a universal human good. Everyone is better off, no matter where they live and who they are, if government officials, when they act, operate within a limiting legal framework in both of the senses set out in this article, in the sense of abiding by the law as written, and in the sense that there are limits on law making power.
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Two connected arguments are typically raised by opponents to these assertions: that the government is merely an extension of the community (a manifestation of community will), therefore no protection against it is necessary; and that aforesaid limits will sometimes prevent the benevolent exercise of government power.34 The first point is invariably wrong if meant to be a description of reality, and the second is correct, but placing limits on government officials is still preferable to the alternative. Nowhere today (including small scale societies, none of which are left completely untouched by government) can it be asserted plausibly that the government is just the community personified. The state system, and governments in their modern form, are of relatively recent invention, no more than several centuries old, a development initially of the West, which then spread by colonization or imitation.35 As such, it has never been an extension of the community, at least not outside the dreams of political theorists or populists, but rather is an institutionalized apparatus of organized, concentrated power that claims to operate on behalf of the public. In situations of pluralism—in the three forms identified—which are ubiquitous, almost by definition the government cannot be an extension of the community because no single community exists. Moreover, in situations of pluralism of the second kind there is a heightened risk that the governmental apparatus will be seized by one of the sub-communities in society and used to oppress another sub-community. Since the occasions for and likelihood of the benevolent exercise of government power are lessened in pluralistic communities, owing to disagreements over what benevolence entails, and since the risks are greater owing to the possibility of capture, the 34
See Morton Horwitz, “The Rule of Law: An Unqualified Human Good?” 86 Yale Law Journal 561 (1977).
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cost of sacrificing some benevolent exercises of government power is worth the benefit in increased protection from government tyranny. The reality, demonstrated many times over, is that people in society have as at least as much (and often more) reason to fear the power available to government officials as they do to look forward to its fruits.36 Limiting government officials within a framework of law strikes a balance between these positions, allowing the latter (within legal limits) and restraining the former (though never completely). Note, furthermore, that there is nothing inherently individualist or liberal about this form of the rule of law. It will protect the integrity of the community from government interference or oppression, if that is the prevailing orientation, just as it will protect the individual from the same, if that is the prevailing orientation, and it will protect both in situations of pluralism. That is because this form of the rule of law operates in a negative fashion—it restrains government officials in their course of conduct relative to the law—leaving the parameters of those restraints to be filled in by the social-cultural situation at hand. Application of first sense of the pre-liberal rule of law, that government officials must operate according to standing law, is self evident and needs little elaboration. Government officials must operate within legal bounds. An independent judiciary is the primary guarantor of such consistency. The second sense, that the law making power must be limited, is more complicated. Remember that the first sense is consistent with—it does not necessarily prevent—the use of the law as a tool of oppression (of a sub-community or of individuals), when the power to make law has been seized by persons determined to 35
See Finer, The History of Government, supra, Chapter 7.
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exercise it in this manner, who then pass oppressive laws. For this reason the second sense is as important as the first. If there is a constitution that specifies limits on the law making power, as with the US Constitution, said limits can be enforced by an independent judiciary in a manner no different from the first sense just mentioned (though remember that the constitution can always be amended). This second sense has special promise in situations of the second kind of pluralism, where different communities (none of which might be liberal) coexist. These different communities might agree to set limits, enacted in constitutional terms, on the law making power of the government that prohibits legislation harmful to characteristics each community finds essential to its or identity and existence. This will provide some reassurance for fears about the government on all sides, though again it will be effective only if there is an independent judiciary whose decisions are respected. In the absence of explicit constitutional limits, in the absence of judicial review, in the absence of an independent judiciary, or in situations of avowedly absolute sovereignty (parliamentary or otherwise), the only limits on law making power will be internal and external limits of the sort identified by Dicey. Restraints of this kind will exist, in other words, only if the persons who wield law making power find certain abuses of communities and individuals too unthinkable to enact into law (internal restraint), or if the communities or individuals within that society refuse to accept the results of such law making (external restraint). It is of no moment whether the limits on law making are phrased in terms of natural law or customary law, or religious law or human rights (which is the modern rhetorical replacement for natural law arguments), and indeed the limits
36
For a theoretical and sociological examination of the relationship between law and society, see Brian Z. Tamanaha, A General Jurisprudence of Law and Society (Oxford Univ. Press 2001).
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need not even be phrased in terms of the label “law,” so long as they are understood as setting limits on what the government can do through law. These are moral, political or social limits on the law making power, but their effect is functionally equivalent to legal limits. In the absence of such limits, it must be said, nothing can prevent the law maker from turning the law into a fearsome weapon. To return to earlier cited lessons obtained from the experience of the middle ages, the rule of law in the pre-liberal sense will be possible when the sovereign and government officials accept that they operate within a limiting framework of law, when everyone (government officials and lay persons alike) assumes and understands that to be the case, and when the sovereign and government officials operate on a routine basis within a legal framework along with everyone else. An independent judiciary is a necessary component of this mix, but not sufficient. There is, in the final analysis, no substitute for the pervasive belief, among law makers as well as the public, that the law, owing to its potentially dangerous concentration of power, and to the fact that it claims public legitimacy, is a form of public trust that can only be applied for the good of everyone and cannot be an instrument of abuse.
APPLYING THE LIBERAL VERSION OF THE RULE OF LAW The liberal versions of the rule of law, focused on public rules declared in advance, with the qualities of generality, equality, and certainty, is not necessarily a universal human good, although it works well under certain circumstances. In hybrid societies (the third kind of pluralism), especially, the liberal rule of law will apply in some spheres and not others.
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In particular, it will have positive application and a reasonable chance of success when implemented relative to capitalist market activities, whether in the context of exchange or the workplace. As indicated, formal law, which this version of the rule of law embodies, is valuable in providing security and predictability of transactions among strangers (including international investors). However, it also possible, and must be considered, that the rule of law need not be applied even in these contexts when other functionally equivalent social mechanism are present and efficacious, as when relationships and prevailing cultural understandings generate security.”37 For the same reasons, the liberal rule of law might be useful in situations of interaction between strangers, as is the case in megalopolises around the world, since other social ties and forms of restraint are often thin. Outside of these situations, especially in non-liberal societies and cultures, the question of the applicability of the liberal version of the rule of law must be examined with care, and its extension to each arena or social sphere done cautiously and tentatively. It may well have no application to the realm of the family and little if any to the sphere of community activities. Often non-rule of law orientations will be best in such situations, in the sense that they will less disruptive of existing relationships and social bonds. The rule of law can be alienating and destructive when it clashes with surrounding social understandings. Especially complex problems will no doubt arise in hybrid situations, where both liberal and non-liberal orientations circulate. Here the mix must be determined following negotiation among the interests involved. It cannot be imposed from above, and blanket “all or nothing” strategies should be avoided.
37
See C.A. Jones, “Capitalism, Globalization and Rule of Law: An Alternative Trajectory of Legal Change in China,” 3 Social and Legal Studies 195 (1994).
30
If these suggestions appear less than certain, it is not owing to evasiveness. It is impossible and unwise to specify a formula in advance that would address all possible circumstance. The proper application of the rule of law can be determined only in the context at hand, by the people involved. Attention to the nuances thrown up by local circumstances, and attention to local views, are precisely what has been lacking in attempts to develop the rule of law around the world. Accordingly, I urge a general strategy that involves parsing up the rule of law into different themes and characteristics, emphasizing that they can be broken apart and assembled in different combinations, paying attention to the kinds of attendant pluralism, breaking society down into different spheres, and putting it all together in ways that fit and are likely to succeed. While the actual mixing and matching must be done on a situation specific basis, the strategy can be applied everywhere.
CONCLUSION This essay will end with a return to the four reasons for concern about the nigh universal endorsement of the rule of law. Much of the foregoing analysis, articulating the pre-liberal and the liberal versions of the rule, was allocated to clarifying the first concern regarding confusion and disagreement over the meaning of the “rule of law.” The phrase can be understood in other ways as well, but the alternative constructions offered here are consistent with prevailing usages and facilitate the analysis by opening up a different avenue of thought. The foregoing also addressed the second and third concerns, by indicating some of the reasons for the failure to successfully implement the rule of law, by indicating the sense in which the rule of law is a universal good as well as the ways in
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which it might not be so good, and by offering specific suggestions for the implementation of the pre-liberal version of the rule of law, and a general strategy for implementation of the liberal version of the rule of law. An independent judiciary, which plays a prominent role in the liberal version, and a less prominent (outside of vigilant guarding of constitutional restraints) but still important role in the non-liberal version, is not achieved simply by granting judges life tenure and paying them well. Its foundation lies in a strong legal tradition and, more fundamentally, in a pervasive belief among the populace that the law rules. I have two points to make about the fourth concern, about the disjunction between theory and political practice. First, the theorists who emphasized the decline of the rule of law were focused on the liberal version of the rule of law, not the pre-liberal, so their arguments largely failed to address what I have argued is the version that constitutes a universal human good. Second, my conviction is that reality has refuted the theory, or at least suggests that the theorists were exaggerating. Western societies continue to abide by the general dictates of the liberal version of the rule of law, regardless of the many changes wrought by the social welfare state. The underlying source of the rule of law in both pre-liberal and liberal versions runs deep, consisting of attitudes about law pervasive in society. These attitudes did not change fundamentally with the social welfare state, so the rule of law (in both versions) remains even as it has altered in certain respects. Pervasive societal attitudes about fidelity to the rule of law—in particular the belief that government officials must operate within the law—is the mysterious ingredient that makes the rule of law work. Hope in this respect can be found in an observation I made at the outset, that almost no government today openly rejects the rule
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of law. To the contrary, government leaders around the world regularly and publicly pay homage to the rule of law, whether or not they abide by it. Even if this is more often rhetoric than reality, it is of crucial significance, for the reasons articulated by E.P. Thompson. He was not starry eyed about the rule of law. Law was used by those in power to accomplish many bad things. However, the fact that they repeatedly espoused the virtue of the rule of law meant government officials often had to live up to—and many came to believe—their own rhetoric. This led them to temper their actions to be consistent with the law far more than would have occurred in the absence of any restraint. In an uncertain world in which power largely rules, that is no small feat. In addition to a pervasive belief in fidelity to law, it is also essential to have a pervasive belief (among the populace as well as law makers and government officials) that there are limits to the law itself, that certain things cannot be done the name of law even when properly enacted in legal terms. What the source and content of those limits might be can only be filled in relative to each situation, but that in no wise lessens its significance. For only this can prevent the use of law as an instrument of tyranny.
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